With Attorney General Eric Holder’s speech attempting to justify the president’s omnipotent power to assassinate Americans, we are seeing, once again, the consequences of having permitted U.S. officials with getting away with the sham of converting a criminal offense, terrorism, into an “act of war.” In his speech at Northwestern University, Holder claimed that when the president’s forces kill Americans or anyone else, it’s not assassination at all. Instead, he said, it’s just part of “war.” After all, he intimated, in war that’s what both sides do — they kill each other.

The indisputable fact, however, is that terrorism is a criminal offense. Not even Holder can deny that, given that the Justice Department he heads regularly brings accused terrorists to trial in federal court. When the Justice Department does that, it secures an indictment from a federal grand jury alleging a federal criminal offense relating to the commission of terrorism. The Justice Department then prosecutes the defendant for that crime, and a federal judge presides over the prosecution. After hearing all the evidence, the jury is asked to determine whether the defendant is guilty of the federal crime of terrorism. If the defendant is convicted, he is sentenced to serve time in a federal penitentiary for having committed the federal criminal offense of terrorism.

So, where does Holder get off with his war talk?

That’s where the sham comes in. After 9/11, President Bush simply decreed that terrorism was now going to be considered by U.S. officials as either a criminal offense or an act of war, at their option. That decree, they said, now permitted them to circumvent the constitutional protection that protected people from being killed by federal officials without due process of law.

That guarantee stretched all the way back to Magna Carta. Prior to the Great Charter, King John and his predecessors were wielding the power to use their military forces to seize British citizens, cart them away to the Tower of London, torture them, and execute them.

Magna Carta put a screeching halt to the wielding of such arbitrary and omnipotent power. At the point of a sword, King John publicly acknowledged that his power to kill the citizenry was no longer omnipotent. He conceded that the king no longer had the power to kill a citizen in violation of “the law of the land.”

That phrase — law of the land — gradually evolved over the centuries into the phrase “due process of law,” a phrase that, not surprisingly, found its way into the Fifth Amendment to the Constitution.

Why is that not surprising? Because when the Framers presented the Constitution, which would call the federal government into existence, to our American ancestors, our ancestors were not very excited about the idea. They believed that this new federal government very well might become the biggest threat to their freedom and well-being. Undoubtedly, their concerns included the possibility that the new government would end up arbitrarily torturing and killing them, as King John and many other kings had done to their own citizens.

The proponents of the Constitution assured our ancestors that they had nothing to fear. The government’s powers would be limited to those enumerated in the Constitution. Since there was no power to assassinate Americans enumerated in the Constitution, the government would be precluded from exercising such a power.

The people finally went along with the deal, but not before they received assurances that the Constitution would be amended soon after its approval. Among the amendments was the Fifth Amendment, which prohibited the government from exercising the power that King John had exercised prior to Magna Carta.

Ever since then, that principle has been the law of the land in the United States … until 9/11. That’s when everything changed in a revolutionary way — and without even the semblance of a constitutional amendment that repealed the Fifth Amendment.

That was when, as I stated above, that federal officials finally figured out a way to circumvent the constitutional straitjacket that had constrained federal officials for more than two centuries. All they had to do was declare war on a criminal offense — terrorism — and voila! — the Fifth Amendment was now a nullity at their option.

In other words, they didn’t decree that terrorism was no longer a crime. They made clear that it would continue to be a crime. What changed is that they decreed that terrorism would also now be considered an act of war, at their option. They could decide to go either way. Some suspected terrorists would get the federal court route. Others would get the enemy combatant route, subjecting them to torture and execution.

Of course, the same thing could have been done with the federal drug offenses. Now that the precedent has been set with terrorism, the same thing can be done with drug offenses. Since federal officials have already declared a war on drugs, they wouldn’t have to do that again. All they would have to do is decree that from this day forward, drug offenses will now be considered either criminal offenses or acts of war, at their option. If they wished to bring suspected drug dealers to trial, they would have that option. If they wished to simply assassinate them, they would have that option too.

One of the more amusing aspects of Holder’s speech was when he suggested that due process has nothing to do with judicial process. He intimated that when the president, the military, and the CIA consult over who should be killed and how, that’s “due process.”

Yeah, that’s what those English barons had in mind with Magna Carta. They just wanted King John to consult with his military forces before seizing people, taking them to the Tower of London, torturing them, and executing them. They were just tired of King John doing these things on his own, without consulting with his military officials.

Have you ever heard anything so ridiculous? Due process has always been inextricably interwoven with the judiciary. Look at the four amendments dealing with the government’s power to seize people and do bad things to them: The Fourth, Fifth, Sixth, and Eighth Amendments. The defendants right to counsel. The right of trial by jury. Warrants for searching. No cruel and unusual punishments. Right to bail.

Do you notice the role of an independent judiciary in there? Indeed, I wish Holder had expressed his thinking as to why the Framers created three branches of government rather than just two — the legislative and the executive.

Due process, at a bare minimum, has always meant notice and hearing — the right to be formally notified of why the government is coming after and the right to defend yourself in a hearing or trial. That’s what grand jury indictments are all about. That’s what the presumption of innocence is all about. That’s what trial by jury is all about.

The discomforting fact is that we now live in a country in which the president, the Pentagon, and the CIA now wield the power to assassinate anyone they want, including any American. They can do it right here on American soil because, as U.S. officials have constantly reminded us ever since 9/11, the whole world is the battlefield in the “war on terrorism.”

In the minds of these people, the “war on terrorism” trumps everything. It trumps the Constitution. It trumps the Fifth Amendment. It trumps anything Congress does. It trumps freedom.

It’s time that everyone faces that. It’s time for everyone to decide whether this is the type of government that they want to live under — a government that now wields the same omnipotent powers over the citizenry that every totalitarian dictator in history has wielded.

Indeed, the Egyptian military dictatorship, which the president, the Pentagon, and the CIA have long supported and continue to support, wields the same powers that President Obama, the Pentagon, and the CIA now wield over the American people. How ironic is that? Ominously, the Egyptian dictatorship is exercising such powers not only with respect to terrorism offenses but also drug offenses.

When Benjamin Franklin was asked what type of government the Constitution was bringing into existence, he replied, “A republic, if you can keep it.”

Alas, Americans living today did not keep it. The president’s post-9/11 power to assassinate Americans and others is the best proof of that.

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education.
He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at
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Jacob G. Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.